TITLE 7 HEALTH
CHAPTER 30 FAMILY & CHILDREN HEALTH CARE SERVICES
PART 8 REQUIREMENTS
FOR FAMILY INFANT TODDLER EARLY INTERVENTION SERVICES
7.30.8.1 ISSUING AGENCY: Department of Health, Developmental Disabilities Supports Division
[7.30.8.1 NMAC - Rp, 7.30.8.1 NMAC,
6/29/12]
7.30.8.2 SCOPE: These regulations apply to all entities in New Mexico
providing early intervention
services to eligible children birth to
three years of age and their families.
[7.30.8.2 NMAC - Rp, 7.30.8.2 NMAC,
6/29/12]
7.30.8.3 STATUTORY AUTHORITY: Section 9-7-6
NMSA 1978, and Section 28-18-1 NMSA 1978.
[7.30.8.3 NMAC - Rp, 7.30.8.3 NMAC,
6/29/12]
7.30.8.4 DURATION: Permanent
[7.30.8.4 NMAC - Rp, 7.30.8.4 NMAC,
6/29/12]
7.30.8.5 EFFECTIVE DATE: June 29, 2012, unless a later date is cited
at the end of a section.
[7.30.8.5 NMAC - Rp, 7.30.8.5 NMAC,
6/29/12]
7.30.8.6 OBJECTIVE: These regulations are being promulgated to
govern the provision of early intervention services to eligible children and their
families and to assure that such services meet the requirements of state and
federal statutes, in accordance with the Individuals with Disabilities
Education Act.
[7.30.8.6 NMAC - Rp, 7.30.8.6 NMAC,
6/29/12]
7.30.8.7 DEFINITIONS:
A. “Adaptive
development” means the
development of self-help skills, such as eating, dressing, and toileting.
B. “Adjusted
age (corrected age)” means
adjusting / correcting the child’s age for children born prematurely (i.e. born
less than 37 weeks gestation). The adjusted age is calculated by subtracting
the number of weeks the child was born before 40 weeks of gestation from their
chronological age. Adjusted Age (Corrected
Age) should be used until the child is 24 months of age.
C. “Ages and stages for kids (ASK)”
is a program to track the development of children who are determined to not be
eligible for the FIT program. Parents
complete ages and stages questionnaires at 2-3 month intervals and they are
scored by the FIT program to determine if the child is potentially showing
developmental delays.
D. “Assessment” means the ongoing procedures used by appropriate
qualified personnel throughout the period of a child’s eligibility to identify:
the child’s unique strengths and needs and developmental functioning of the
child and the progress made by the child over time and the early intervention
services appropriate to meet those needs.
E. “Biological/medical risk”
means diagnosed medical conditions that increase the risk of developmental
delays and disabilities in young children.
F. “Child find” means activities
and procedures to locate, identify, screen and refer children from birth to
three years of age with or at risk of having a developmental delay or
developmental disabilities.
G. “Child record” means the early intervention
records (including electronic records) maintained by the early intervention
provider and are defined as educational records in accordance with the Family
Educational Rights and Privacy Act (FERPA).
Early intervention records include files, documents, and other materials
that contain information directly related to a child and family, and are
maintained by the early intervention provider agency. Early intervention records do not include
records of instructional, supervisory, and administrative personnel, which are
in the sole possession of the maker and which are not accessible or revealed to
any other person except to substitute staff.
H. “Cognitive
development” means the
progressive changes in a child’s thinking processes affecting perception,
memory, judgment, understanding and reasoning.
I. “Communication
development” means the
progressive acquisition of communication skills, during pre-verbal and verbal
phases of development; receptive and expressive language, including spoken,
non-spoken, sign language and assistive or augmentative communication devices
as a means of expression; and speech production and perception. It also includes oral-motor development,
speech sound production, and eating and swallowing processes. Related to hearing, communication development
includes development of auditory awareness; auditory, visual, tactile, and
kinesthetic skills; and auditory processing for speech or language development.
J. “Confidentiality” means
protection of the family’s right to privacy of all personally identifiable
information, in accordance with all applicable federal and state laws.
K. “Consent” means informed written prior authorization by the
parent(s) to participate in the early intervention system. The parent has been fully informed of all
information relevant to the activity for which consent is sought in the
parent’s native language and mode(s) of communication and agrees to the
activity for which consent is sought. The parent(s)
shall be informed that the granting of consent is voluntary and can be revoked
at any time. The revocation of consent is not retroactive.
L. “Days” means calendar days, unless otherwise indicated in
these regulations.
M. “Developmental delay” means an evaluated
discrepancy between chronological age and developmental age of 25%, after
correction for prematurity, in one or more of the following areas of
development: cognitive, communication, physical/motor, social or emotional, and
adaptive.
N. “Developmental specialist” means
an individual who meets the criteria established in these regulations and is
certified to provide ‘developmental instruction’. A developmental specialist works directly
with the child, family and other personnel to implement the IFSP. The role and scope of responsibility of the
developmental specialist with the family and the team shall be dictated by the
individual’s level of certification as defined in developmental disabilities
supports division (DDSD) policy and service standards.
O. “Dispute resolution process” means
the array of formal and informal options available to parents and
providers for resolving disputes related to the provision of early intervention
services and the system responsible for the delivery of those services.
P. “Due process hearing” means a
forum in which all parties present their viewpoint and evidence in front of an
impartial hearing officer in order to resolve a dispute.
Q. “Duration” means the length of
time that services included in the IFSP will be delivered.
R. “Early intervention services”
means any or all services specified in the IFSP that are designed to meet the
developmental needs of each eligible child and the needs of the family related
to enhancing the child’s development, as identified by
the IFSP team.
(Early intervention services are described in detail in the service
delivery provisions of this rule.)
S. “ECO (early childhood outcomes)” means the
process of determining the child’s development compared to typically developing
children of the same age. The information is used to measure the child’s
developmental progress over time.
T. “Eligible
children” means children birth to three years
of age who reside in the state and who meet the eligibility criteria within
this rule.
U. “Environmental risk” means the
presence of adverse family factors in the child’s environment that increases
the risk of developmental delays and disabilities in young children.
V. “Established condition” means a
diagnosed physical, mental, or neurobiological condition that has a high
probability of resulting in developmental delay or disability.
W. “Evaluation” means the process
through which a child’s eligibility for early intervention services is
determined. It involves a review of
pertinent records related to the child’s current health status and medical
history; parent report, and assessment of level of functioning of the child in
each developmental area (cognitive, communication, physical/motor (including
vision and hearing), social or emotional, and adaptive) using the FIT program
approved tool(s); and an explanation of how the status in each of the
developmental areas affects the child’s overall functioning.
X. “Family” means a basic unit of
society typically composed of adults and children having as its nucleus one or
more primary nurturing caregivers cooperating in the care and rearing of their
children. Primary nurturing caregivers
may include, but are not limited to, parents, guardians, siblings, extended
family members, and others defined by the family.
Y. “FIT-KIDS (key information data
system)” means the online data collection and billing system
utilized by the FIT program.
Z. “Family
infant toddler (FIT) program”
means the program within state government that administers New Mexico’s early
intervention system for children (from birth to age three) who have or are at
risk for developmental delay or disability and their families. The FIT program is established in accordance
with 28-18-1 NMSA, Chapter 178, and administered in accordance with the Individuals
with Disabilities Education Act (IDEA), Part C as amended, and other applicable
state and federal statutes and regulations.
AA. “Family service coordinator” means
the person responsible for coordination of all services and supports listed on
the IFSP and ensuring that they are delivered in a timely manner. The initial
family service coordinator assists the family with intake activities such as
eligibility determination and development of an initial individualized family
service plan (IFSP) The ongoing family service coordinator is selected at the
initial IFSP meeting and designated on the IFSP form.
BB. “Frequency” means the number of
times that a service is provided or an event occurs within
a specified period.
CC. “Head start/early head start” means
a comprehensive child development program for children of low income families
established under the Head Start Act, as amended.
DD. “Homeless” means lacking a fixed, regular, and adequate nighttime residence.
EE. “IFSP
team” means the persons responsible
for developing, reviewing the IFSP. The
team shall include the parent(s), the family service coordinator, person(s)
directly involved in conducting evaluations and assessments, and, as
appropriate, persons who will be providing services to the child or family, an
advocate or other persons, including family members, as requested by the
family.
FF. “Inclusive setting” means a
setting where the child with a developmental delay or disability participates
in a setting with typically developing children. A classroom in an early head
start, childcare or preschool classroom must have at least 51% non disabled
peers in order to be considered an inclusive setting.
GG. “Indian tribe” means any federal or state recognized Indian tribe.
HH. “Individuals
with Disabilities Education Act (IDEA) – Part C” means the federal law that contains requirements for
serving eligible children. Part C of
IDEA refers to the section of the law entitled “The Early Intervention Program
for Infants and Toddlers with Disabilities”.
II. “Individualized education program
(IEP)” means a written plan developed with input from the parents that
specifies goals for the child and the special education and related services
and supplementary aids and services to be provided through the public school
system under IDEA Part B.
JJ. “Individualized family service plan
(IFSP)” means the written plan for providing early intervention services to
an eligible child and the child’s family.
The plan is developed jointly with the family and appropriate qualified
personnel involved. The plan is
developed around outcomes and includes strategies to enhance the family’s
capacity to meet the developmental needs of the eligible child.
KK. “Individualized family service plan
process (IFSP process)” means a process that occurs from
the time of referral, development of the IFSP, implementation of early
intervention services, review of the IFSP, through transition. The family
service coordinator facilitates the IFSP process.
LL. “Informed clinical opinion” means
the knowledgeable perceptions of the evaluation team who use qualitative and
quantitative information regarding aspects of a child’s development that are
difficult to measure in order to make a decision about the child’s eligibility
for the FIT program.
MM. “Intensity” means the length of time the service is provided
during each session.
NN. “Interim IFSP” means an IFSP that
is developed only under extraordinary circumstances for a child and family
within forty-five days of referral (before the completion of the evaluation and
assessment), used to facilitate the immediate provision of services to a child
and family. Use of an Interim IFSP does
not extend the forty five day timeline for completion of the evaluation
process.
OO. “Lead agency” means the agency
responsible for administering early intervention services under the Individuals
with Disabilities Education Act (IDEA) Part C. The Department of health (DOH), family
infant toddler (FIT) program, is designated as the lead agency for IDEA Part C
in New Mexico.
PP. “Local education agency (LEA)” means
the local public school district.
QQ. “Location” means the places in which
early intervention services are delivered.
RR. “Mediation” means a method of
dispute resolution that is conducted by an impartial and neutral third party,
who without decision-making authority will help parties to voluntarily reach an
acceptable settlement on issues in dispute.
SS. “Medicaid” means the federal
medical assistance program under Title XIX of the Social Security Act. This program provides reimbursement for some
services delivered by early intervention provider agencies to medicaid-eligible
children.
TT. “Method” means the way in which a
specific early intervention service is delivered. Examples include group and individual
services.
UU. “Multidisciplinary” means personnel
from more than one discipline who work with the child and family, and who
coordinate with other members of the team.
VV. “Native language” means the
language or mode of communication normally used by the parent(s) of an eligible
child.
WW. “Natural environments” means places
that are natural or normal for children of the same age who have no apparent
developmental delay, including the home, community and inclusive early
childhood settings. Early intervention
services are provided in natural environments in a manner/method that promotes
the use of naturally occurring learning opportunities and supports the integration
of skills and knowledge into the family’s typical daily routine and lifestyle.
XX. “Other services”
means services that the child and family need, and that are not early
intervention services, but should be included in the IFSP. Other services does not mean routine medical
services unless a child needs those services and the services are not otherwise
available or being provided. Examples
include, but are not limited to, child care, play groups, home visiting, early
head start, WIC, etc.
YY. “Outcome” means a written statement of changes that
the family desires to achieve for their child and themselves as a result of
early intervention services that are documented on the IFSP.
ZZ. “Participating agency” means any
individual, agency, entity, or institution that collects, maintains, or uses
personally identifiable information to implement the requirements of this rule
with respect to a particular child.
AAA. “Parent(s)” means a natural or
adoptive parent(s) of a child; a guardian; a person acting in the place of a
parent (such as a grandparent or stepparent with whom the child lives, or a
person who is legally responsible for the child’s welfare); or a surrogate
parent who has been assigned in accordance with these regulations. A foster parent may act as a parent under
this program if the natural parents’ authority to make the decisions required
of parents has been removed under state law and the foster parent has an
ongoing, long-term parental relationship with the child; is willing to make the
decisions required of parents under the Federal Individual with Disabilities
Education Act; and has no interest that would conflict with the interests of
the child.
BBB. “Permission” means verbal
authorization from the parents to carry out a function and shall be
documented. Documentation of permission
does not constitute written consent.
CCC. “Personally identifiable information”
means that information in any form which includes the names of the child or
family members, the child’s or family’s address, any personal identifier of the
child and family such as a social security number, or a list of personal
characteristics or any other information that would make it possible to
identify the child or the family.
DDD. “Personnel” means qualified staff and contractors
who provide early intervention services, and who have met state approved or recognized certification or licensing
requirements that apply to the area in which they are conducting evaluations, assessments
or providing early intervention services.
EEE. “Physical/motor
development” means the progressive changes to a
child’s vision, hearing, gross and fine motor development, quality of movement,
and health status.
FFF. “Primary referral source” means
parents, physicians, hospitals and public health facilities (including prenatal
and postnatal care facilities), child care programs, home visiting providers,
schools, local education agencies, public health care providers, children’s
medical services, public agencies and staff in the child welfare system
(including child protective service and foster care), other public health or
social services agencies, early head start, homeless family shelters, domestic
violence shelters and agencies, and other qualified individuals or agencies
which have identified a child as needing evaluation or early intervention
services.
GGG. “Prior written notice” means written
notice given to the parents a reasonable time before the early intervention
provider agency, either proposes or refuses to initiate or change the identification,
evaluation, or placement of the child, or the provision of appropriate early
intervention services to the child and the child’s family. Prior notice must contain the action being
proposed or refused, the reasons for taking the action and all procedural
safeguards that are available.
HHH. “Procedural safeguards” means the
requirements set forth by IDEA, as amended, which specify families’ rights and
protections relating to the provision of early intervention services and the
process for resolving individual complaints related to services for a child and
family.
III. “Provider agency” means an
provider that meets the requirements established for early intervention
services, and has been certified as a provider of early intervention services
by the department of health and that provides services through a provider
agreement with the department.
JJJ. “Public agency” means the lead
agency and any other political subdivision of the state government that is
responsible for providing early intervention services to eligible children and
their families.
KKK. “Referral” means the process of
informing the FIT program regarding a child who may benefit from early
intervention, and giving basic contact information regarding the family.
LLL. “Reflective supervision” means
planned time to provide a respectful, understanding and thoughtful atmosphere
where exchanges of information, thoughts, and feelings about the things that
arise around the person’s work in supporting healthy parent-child relationships
can occur. The focus is on the families involved and on the experience of the
supervisee.
MMM. “School
year” means the period of time
between the fall and spring dates established by each public school district which
mark the first and last days of school for any given year for children ages
three through twenty-one years. These dates are filed each year with the public
education department.
NNN. “Scientifically
based practices” means research that involves the application of
rigorous, systematic, and objective procedures to obtain reliable and valid
knowledge relevant to education activities and programs.
OOO. “Screening” means the use of a standardized instrument to determine
if there is an increased concern regarding the child’s development when
compared to children of the same age, and whether a full evaluation would
therefore be recommended.
PPP. “Significant atypical development” means
the eligibility determination under developmental delay made using informed
clinical opinion, when 25% delay cannot be documented through the state
approved evaluation tool, but where there is significant concern regarding the
child’s development.
QQQ. “Social or emotional development” the
developing capacity of the child to:
experience, regulate, and express emotion; form close and secure
interpersonal relationships; explore the environment and learn.
RRR. “State
education agency” means the
public education department responsible for administering special education and
related serves under IDEA Part B.
SSS. “Strategies” means the section of the IFSP that describes how the team,
including the parent(s), will address each outcome. Strategies shall include
the times and locations where activities will occur, as well as accommodations
to be made to the environment and assistive technology to be used. Strategies
shall also include how members of the team will work together to meet the
outcomes on the IFSP.
TTT. “Supervision” means defining and communicating job requirements;
counseling, mentoring and coaching for improved performance; providing
job-related instruction; planning, organizing, and delegating work; evaluating
performance; providing corrective and formative feedback; providing
consequences for performance; and arranging the environment to support
performance.
UUU. “Surrogate parent” means the person
appointed in accordance with these regulations to represent the eligible child
in the IFSP Process when no parent can be identified or located or the child is
a ward of the state. A surrogate parent
has all the rights and responsibilities afforded to a parent under Part C of
IDEA.
VVV. “Transition” means the process for a
family and eligible child of moving from services provided through the FIT
program at age three. This process
includes discussions with, and training of, parents regarding future placements
and other matters related to the child’s transition; procedures to prepare the
child for changes in service delivery, including steps to help the child adjust
to and function in a new setting; and with parental consent, the transmission
of information about the child to a program into which the child might
transition to ensure continuity of services, including evaluation and
assessment information required and copies of IFSPs that have been developed
and implemented.
WWW. “Transition plan” means a component of the
IFSP that addresses the process of a family and eligible child of moving from
one service location to another. The plan defines the roles, responsibilities,
activities and timelines for ensuring a smooth and effective transition.
XXX. “Ward of the state” means a child who is a foster child or in the custody of the
child welfare agency.
[7.30.8.7 NMAC - Rp, 7.30.8.7 NMAC,
6/29/12]
7.30.8.8 ADMINISTRATION:
A. Supervisory authority.
(1) Any
agency, organization, or individual that provides early intervention services
to eligible children and families shall do so in accordance with these
regulations and under the supervisory authority of the lead agency for Part C
of IDEA, the New Mexico department of health.
(2) An
agency that has entered into a contract or provider agreement or an
inter-agency agreement with the New Mexico department of health to provide early
intervention services shall be considered an “early intervention provider
agency” under these regulations.
B. Provider requirements.
(1) All early intervention provider agencies
shall comply with these regulations and all other applicable state and federal
regulations. All early intervention
provider agencies that provide such services shall do so under the
administrative oversight of the lead agency for IDEA, Part C, the New Mexico
department of health through the family infant toddler (FIT) program.
(2) All early
intervention provider agencies shall establish and maintain separate financial
reporting and accounting procedures for the delivery of early intervention
services and related activities. They shall
generate and maintain documentation and reports required in accordance with
these regulations, the provisions of the contract/provider agreement or an
inter-agency agreement, medicaid rules and department of health service
definitions and standards. This
information shall be kept on file with the early intervention provider agencies
and shall be available to the New Mexico department of health or its designee
upon request.
(3) All
early intervention provider agencies shall employ individuals who maintain
current licenses or certifications required of all staff providing early
intervention services. Documentation
concerning the licenses and certifications shall be kept on file with the early
intervention provider agency and shall be available to the New Mexico
department of health or its designee upon request. The provider of early intervention services
cannot employ an immediate family member of an eligible and enrolled child to
work directly with that child.
Exceptions can be made with prior approval by the New Mexico department
of health.
(4) Early intervention provider agencies shall
ensure that personnel receive adequate planned and ongoing supervision, in order to ensure that individuals have the information and
support needed to perform their job duties. The early intervention provider agency shall
maintain documentation of supervision activities. Supervision shall comply with requirements of
appropriate licensing and regulatory agencies for each discipline.
(5) Early
intervention provider agencies shall provide access to information necessary
for the New Mexico department of health or its designee to monitor compliance
with applicable state and federal regulations.
(6) Failing to
comply with these regulations on the part of early intervention provider
agencies will be addressed in accordance with provisions in the
contract/provider agreement or interagency agreement and the requirements of
state and federal statutes and regulations.
C. Financial matters.
(1) Reimbursement for early
intervention services to eligible children and families by the family infant
toddler program shall conform to the method established by the New Mexico
department of health, as delineated in the early intervention provider agency’s
provider agreement and in the service definitions and standards.
(2) Early intervention
provider agencies shall only bill for early intervention services delivered by
personnel who possess relevant, valid licenses or certification in accordance
with personnel certification requirements of this rule.
(3) Early
intervention provider agencies shall enter delivered services data into the
FIT-KIDS (key information data system), which is generated into claims for
medicaid, private insurance and invoices for the department of health.
(4) Early
intervention provider agencies shall maintain documentation of all services
provided in accordance with service definitions and standards and provider
agreement / contact requirements.
(5) The FIT
program and early intervention provider agencies shall not implement a system
of payments or fees to parents.
(6) Public and
private insurance.
(a) The parent(s) will
not be charged any co-pay or deductible related to billing their public insurance (including medicaid) and private
insurance.
(b) The parent(s) shall provide written
consent before personally identifiable information is disclosed for billing
purposes to public insurance (including medicaid)
and private insurance.
(c) The parent(s) may withdraw consent at any
time to disclose personally identifiable information to public insurance (including medicaid) and private insurance for billing
purposes.
(d) The
parent(s) shall provide written consent to use their private insurance to pay
for FIT program services. Consent shall be obtained prior to initial billing of
their private insurance for early intervention services and each time consent
for services is required due to an increase (in frequency, length, duration, or
intensity) in the provision of services on the IFSP.
[7.30.8.8 NMAC - Rp, 7.30.8.8 NMAC,
6/29/12]
7.30.8.9 PERSONNEL:
A. Personnel requirements.
(1) Early intervention services shall be
delivered by qualified personnel.
Personnel shall be deemed “qualified” based upon the standards of their
discipline and in accordance with these regulations and shall be supervised in
accordance with these regulations.
(2) Individuals who hold a
professional license or certificate from an approved field as identified in
this rule, and provide services in that discipline, do not require
certification as a Developmental Specialist.
However, individuals who hold a professional license or certificate in
one of these fields and who spend 60% or more of their time employed in the
role of developmental specialist must obtain certification as a developmental
specialist.
(3) Personnel may delegate and perform tasks
within the specific scope of their discipline.
The legal and ethical responsibilities of personnel within their
discipline cannot be delegated.
B. Qualified
personnel may include
individuals from the following disciplines who meet the state’s entry level
requirements and possess a valid license or certification:
(1) audiology;
(2) developmental
specialist;
(3) early
childhood development and education;
(4) education
of the deaf/hard of hearing;
(5) education of
the blind and visually impaired;
(6) family
therapy and counseling;
(7) nutrition/dietetics;
(8) occupational
therapy (including certified occupational therapy assistants);
(9) orientation
and mobility specialist;
(10) pediatric
nursing;
(11) physical
therapy (including physical therapy assistants);
(12) physician
(pediatrics or other medical specialty);
(13) psychology
(psychologist or psychological associate);
(14) social work;
(15) special
education; and
(16) speech
and language pathology.
C. Certification of developmental
specialist.
(1) Certification is required for
individuals providing early intervention services functioning in the position
of developmental specialist.
(2) A developmental specialist must have the
appropriate certificate issued by the department of health in accordance with
the developmental specialist certification policy and procedures.
(3) The term of certification as
a developmental specialist is a three year period granted from the date the
application is approved.
D. Reciprocity
of certification: An
applicant for a developmental specialist certificate who possesses a comparable
certificate from another state shall be eligible to receive a New Mexico
developmental specialist certificate, at the discretion of the department of
health.
E. Certification renewal: The
individual seeking renewal of a developmental specialist certificate shall
provide the required application and documentation in accordance with policy
and procedures established by the FIT program.
F. Agency
exemptions from personnel certification requirements.
(1) At its discretion, the FIT program may
issue to an early intervention provider agency an exemption from personnel
qualifications for a particular developmental specialist position. The exemption shall be in effect only for one
year from the date it is issued.
(2) An exemption from
certification is for a specific position and is to be used in situations when
the early intervention provider agency can demonstrate that it has attempted
actively to recruit personnel who meet the certification requirements but is
currently unable to locate qualified personnel.
(3) Early intervention provider
agencies shall not bill for early intervention services delivered by a
non-certified developmental specialist unless the FIT program has issued an
exemption for that position.
(4) Documentation
of efforts to hire personnel meeting the certification requirements shall be
maintained.
G. Family service coordinators.
(1) Family
service coordinators shall possess a bachelor’s degree in health, education or
social service field or a bachelor’s degree in another field plus two years
experience in community, health or social services.
(2) If an early
intervention provider agency is unable to hire suitable candidates meeting the
above requirements, a person can be hired as a family service coordinator with
an associate of arts degree and at least three years experience in community,
health or social services.
(3) Early
intervention provider agencies may request a waiver from the FIT program, to
hire family service coordinators who do not meet the qualifications listed
above but do meet cultural, linguistic, or other specific needs of the
population served and or an individual who is the parent of a child with a
developmental delay or disability.
(4) All
individuals must meet all training requirements for family service coordinators
in accordance with FIT program standards within one-year of being hired.
H. Supervision
of early intervention personnel.
(1) Early intervention provider
agencies shall ensure that developmental specialists (employees and
subcontractors) and family service coordinators receive monthly planned and
ongoing reflective supervision.
(2) The early intervention
provider agency shall maintain documentation of supervision activities
conducted.
(3) Supervision
of other early intervention personnel shall comply with the requirements of
other appropriate licensing and regulatory agencies for each discipline.
[7.30.8.9 NMAC - Rp, 7.30.8.9 NMAC,
6/29/12]
7.30.8.10 CHILD IDENTIFICATION:
A. Early intervention provider agencies
shall collaborate with the New Mexico department of health and other state,
federal and tribal government agencies in a coordinated child find effort to
locate, identify and evaluate all children residing in the state who may be
eligible for early intervention services. Child find efforts shall include
families and children in rural and in Native American communities, children
whose family is homeless, children in foster care and wards of the state, and
children born prematurely.
B. Early intervention provider agencies shall collaborate with the New
Mexico department of health and shall inform primary referral sources regarding
how to make a referral when there are concerns about a child’s development,
including especially hospitals, including
prenatal and postnatal care facilities; physicians; public health facilities; child care and early learning
programs, school districts; home visiting programs; homeless family shelters;
domestic violence shelters and agencies; child protective services, including
foster care; other social service agencies; and other health care providers.
C. Early intervention provider agencies in collaboration
with the New Mexico department of health shall inform parents, medical
personnel, local education agencies and the general public of the availability
and benefits of early intervention services.
This collaboration shall include an ongoing public awareness campaign
that is sensitive to issues related to accessibility, culture, language, and
modes of communication.
D. Referral and intake:
(1) Primary
referral sources shall inform parent(s) of their intent to refer and the
purpose for the referral. Primary
referral sources should refer the child as soon as possible, but in no case more
than seven days after the child has been identified.
(2) Parents
must give permission for a referral of their child to the FIT program.
(3) The
child must be under three years of age at the time of the referral.
(4) If
there are less than 45 days before the child turns three at the time of
referral, the early intervention provider agency will not complete an
evaluation to determine eligibility and will assist the family with a referral
to Part B preschool special education and other preschool programs, as
appropriate and with consent of the parent(s).
(5) The
early intervention provider agency receiving a referral shall promptly assign a
family service coordinator to conduct an intake with the parent(s).
(6) The
family service coordinator shall contact the parent(s) to arrange a meeting at
the earliest possible time that is convenient for the parent(s) in order to:
(a) inform the parent(s)
about early intervention services and the IFSP process;
(b) review
the FIT family handbook;
(c) explain
the family’s rights and procedural safeguards;
(d) if
in a county that is also served by other FIT provider, inform the parent(s) of
their choice of provider agencies and have them sign a “freedom of choice
form”.
(e) provide
information about evaluation options; and with the parent’s consent, arrange
the comprehensive multidisciplinary evaluation.
(7) The
family service coordinator with parental consent shall schedule and facilitate
the initial IFSP meeting to be completed within (45) days of referral to the
FIT program for early intervention services.
(8) documented exceptional
family circumstances to the 45 day timeline include:
(a) if the parent(s)
or child are unavailable to complete the screening (if applicable), the initial
evaluation; or the IFSP meeting; and
(b) if the parent(s)
has not provided consent for the screening (if applicable) or the initial
evaluation, despite repeated documented attempts to obtain parental consent.
E. Screening.
(1) A developmental screening for
a child who has been referred may be conducted using a standardized instrument
to determine if there is an indication that the child may have developmental
delay and whether an evaluation to determine eligibility is recommended.
(2) A developmental screening
should not be used if the child has a diagnosis that would qualify them under
established condition or biological medical risk or where the referral
indicates a strong likelihood that the child has delay in their development,
including when a screening has already been conducted.
(3) If a developmental screening
is conducted:
(a) the
written consent of the parent(s) must be obtained for the screening; and
(b) the
parent must be provided written notice that they can request an evaluation at
any point during the screening process.
(4) If the
results of the screening:
(a) Do not
indicate that the child is suspected of having a developmental delay, the parent
must be provided written notice of this result and be informed that they can
request an evaluation at the present time or any future date. The parent should
also be informed of the ages and stages for kids (ASK) program and whether they
would like to enroll in ASK in order to receive periodic developmental
screenings.
(b) Do
indicate that the child is suspected of having a developmental delay, an
evaluation must be conducted, with the consent of the parent(s). The 45-day
timeline from referral to the initial IFSP and all of the
referral and intake requirements of this rule must
still be met.
F. Evaluation.
(1) A child who is referred for
early intervention services, and whose parent(s) has given prior informed
consent, shall receive a comprehensive multidisciplinary evaluation to
determine eligibility, unless the child receives a screening in accordance with
the screening requirements of this rule and the results do not indicate that
the child is suspected of having a developmental delay. Exception: If the parent of the child
requests and consents to an evaluation at any time during the screening
process, evaluation of the child must be conducted even if the results do not
indicate that the child is suspected of having a developmental delay.
(2) The evaluation shall be
timely, non-discriminatory, comprehensive, multidisciplinary, and shall include
information provided by the parent(s).
(3) If parental consent is not
given, the family service coordinator shall make reasonable efforts to ensure
that the parent(s) is fully aware of the nature of the evaluation or the
services that would be available; and that the parent(s) understand that the child
will not be able to receive the evaluation or services unless consent is given.
(4) A comprehensive
multidisciplinary evaluation shall be conducted by a multidisciplinary team
consisting of at least two professionals from different disciplines.
(5) The family service
coordinator shall coordinate the evaluation and shall obtain pertinent records
related to the child’s health and medical history.
(6) The evaluation shall include
information provided by the child’s parents, a review of the child’s records
related to current health status and medical history and observations of the
child. The evaluation shall also include an assessment of the child’s strengths
and needs and a determination of the developmental status of the child in the
following developmental areas:
(a) physical/motor development
(including vision and hearing);
(b) cognitive development;
(c) communication development;
(d) social or emotional
development; and
(e) adaptive development.
(7) If the child has a recent and
complete evaluation current within the past six months, the results may be
used, in lieu of conducting an additional evaluation, to determine eligibility.
(8) The evaluation team shall use
the tool(s) approved by the FIT program. Other domain specific tools may be
used in addition to the approved tool(s).
(9) The
tool(s) used in the evaluation shall be administered by certified or licensed
personnel who have received training in the use of the tool(s).
(10) The evaluation shall be
conducted in the child and family’s native language or other mode of communication, unless it is clearly not feasible to do
so.
(11) The evaluation
team will collect and discuss all of the information obtained during the
evaluation process in order to make a determination of the child’s eligibility
for the FIT program.
(12) An evaluation report shall be
generated that summarizes the findings of the multidisciplinary evaluation team. The report shall summarize the child’s level
of functioning in each developmental area based on assessments conducted and
shall describe the child’s overall functioning and ability to participate in
family and community life. The report
shall include recommendations regarding approaches and strategies to be
considered when developing IFSP outcomes.
The report shall also include a statement regarding the determination of
the child’s eligibility for the FIT program.
(13) Parents
shall receive a copy of the evaluation report and shall have the results and
recommendations of the evaluation report explained to them by a member of the
evaluation team or the family service coordinator with prior consultation with
the evaluation team.
(14) Information from
the evaluation process and the report shall be used to assist in determining a
rating for the initial ECO.
G. Eligibility
determination.
(1) The
child’s eligibility for the FIT program shall be determined by the
multidisciplinary evaluation team, the family service coordinator and the
parent(s).
(2) The
multidisciplinary team shall review and consider information, including:
medical records; observations; information gathered from the parent(s);
information regarding the child’s development from the use of the approved
evaluation tool(s); and any other tools used, in order to provide their opinion
regarding the determination of the child’s eligibility.
(3) The
child’s age shall be adjusted (corrected) for prematurity for children born
less than 37 weeks gestation. The adjusted age shall be until a child is 24
months of age for the purpose of eligibility determination.
(4) Informed
clinical opinion may be used by the evaluation team to determine
eligibility when the approved tool(s) or
other domain-specific tool are not able to establish a developmental level due
to the age of an infant or the child’s level of arousal and ability to
participate at the time of the assessment; or when there are
inconsistencies in the child’s performance or inconsistencies in the results of
the evaluation; and the team determines that the child has significant atypical
development.
(a) If informed clinical opinion is used to determine
the child’s eligibility, documentation must be provided to justify the child’s
eligibility.
(b) A
second level review and sign off shall occur within the early intervention
provider agency by someone of equal or higher certification or licensure that
was not part of the evaluation team.
(c) Informed
clinical opinion may only be used to qualify a child for more than one year
with review and approval of the FIT program.
(5) A
statement of the child’s eligibility for the FIT program shall be documented in
the evaluation report.
(6) The
child must be determined eligible under one of the following categories.
(a) Developmental delay: a delay of 25% or more, after correction for
prematurity, in one or more of the following areas of development: cognitive; communication; physical/motor;
social or emotional; adaptive;
(i) 25%
delay shall be documented utilizing the tool(s) approved by the FIT program;
(ii) if the FIT
program approved tool does not indicate a 25% delay, a domain-specific tool may
be used to establish eligibility if the score is 1.5 standard deviations below
the mean or greater;
(iii) informed
clinical opinion in accordance with this rule may be used if a clear
developmental level cannot be gained through the use of the approved tool(s) or
domain-specific tools; or when there are inconsistencies in
the child’s performance or inconsistencies in the results of the evaluation; and shall be documented as “significant atypical
development”.
(b) Established condition: a diagnosed physical, mental, or neurobiological
condition that has a high probability of resulting in developmental delay. The established condition shall be diagnosed
by a health care provider and documentation shall be kept on file. Established conditions include the following:
(i)
genetic disorders with a high probability of developmental delay,
including chromosomal anomalies including Down syndrome and Fragile X syndrome
(in boys); inborn errors of metabolism including Hurler syndrome; and other
syndromes, including Prader-Willi and Williams;
(ii) perinatal factors,
including toxoplasmosis, rubella, CMV, and herpes (TORCH); prenatal toxic
exposures including fetal alcohol syndrome (FAS); and birth trauma, including
neurologic sequelae from asphyxia;
(iii) neurologic
conditions, including congenital anomalies of the brain including
holoprosencephaly lissencephaly, microcephaly, hydrocephalus; anomalies of
spinal cord including meningomyelocele; degenerative or progressive disorders
including muscular dystrophies, leukodystrophies, spinocerebellar disorders;
cerebral palsy (all types), including generalized, hypotonic patterns; abnormal
movement patterns including generalized hypotonia, ataxias, myoclonus, and
dystonia; peripheral neuropathies; traumatic brain injury; and CNS trauma
including shaken baby syndrome;
(iv) sensory
abnormalities, including visual impairment or blindness; congenital impairments
including cataracts; acquired impairments including retinopathy of prematurity;
cortical visual impairment; and chronic hearing loss;
(v) physical
impairment, including congenital impairments including arthrogryposis,
osteogenesis imperfecta, and severe hand anomalies; and acquired impairments
including amputations and severe burns;
(vi) mental/psychosocial
disorders, including autism spectrum disorders; and
(vii) conditions
recognized by the FIT program as established conditions for purposes of this
rule; a genetic disorder, perinatal factor, neurologic condition, sensory
abnormality, physical impairment or mental/psychosocial disorder that is not
specified above must be recognized by the FIT program in order to qualify as an
established condition for purposes of this rule; department of
health physician, designated by the FIT program manager, shall make a
determination of whether a proposed condition will be recognized within seven
days of the FIT program manager’s receipt of the request for review.
(c) Biological or medical risk for
developmental delay: a diagnosed
physical, mental, or neurobiological condition.
The biological or medical risk condition shall be diagnosed by a
health care provider and documentation shall be kept on file. Biological and medical risk conditions
include the following:
(i) genetic
disorders with increased risk for developmental delay, including chromosomal
anomalies including Turner syndrome, Fragile X syndrome (in girls), inborn
errors of metabolism including Phenylketonuria (PKU), and other syndromes
including Goldenhar neurofibromatosis, and multiple congenital anomalies (no
specific diagnosis);
(ii) perinatal
factors, including prematurity (less than 32 weeks gestation) or small for
gestational age (less than 1500 gms); prenatal toxic exposures including
alcohol, polydrug exposure, and fetal hydantoin syndrome; and birth trauma
including seizures, and intraventricular or periventricular hemorrhage;
(iii) neurologic
conditions, including anomalies of the brain including the absence of the
corpus callosum, and macrocephaly; anomalies of the spinal cord including spina
bifida and tethered cord; abnormal movement patterns including severe tremor
and gait problems; and other central nervous system (CNS) influences, including
CNS or spinal cord tumors, CNS infections (e.g., meningitis), abscesses,
acquired immunodeficiency syndrome (AIDS), and CNS toxins (e.g., lead
poisoning);
(iv) sensory
abnormalities, including neurological visual processing concerns that affect
visual functioning in daily activities as a result of neurological conditions,
including seizures, infections (e.g., meningitis), and injuries including
traumatic brain injury (TBI); and mild or intermittent hearing loss;
(v) physical
impairment, including congenital impairments including cleft lip or palate,
torticollis, limb deformity, club feet; acquired impairments including severe
arthritis, scoliosis, and brachial plexus injury;
(vi) mental/psychosocial
disorders, including severe attachment disorder, severe behavior disorders, and
severe socio-cultural deprivation;
(vii) other medical
factors and symptoms, including growth problems, severe growth delay, failure
to thrive, certain feeding disorders, and gastrostomy for feeding; and chronic
illness/medically fragile conditions including severe cyanotic heart disease,
cystic fibrosis, complex chronic conditions, and technology-dependency; and
(viii) conditions
recognized by the FIT program as biological or medical risk conditions for
purposes of this rule; a genetic disorder, perinatal factor, neurologic
condition, sensory abnormality, physical impairment, mental/psychosocial
disorder, or other medical factor or symptom that is not specified above must
be recognized by the FIT program in order to qualify as an medical or
biological risk condition for purposes of this rule; department of health physician, designated by the FIT program
manager, shall make a determination of whether a proposed condition will be
recognized within seven days of the FIT program manager’s receipt of the
request for review.
(d) Environmental
risk for developmental delay: a presence of adverse family factors in the child’s
environment that increases the risk for developmental delay in children. Eligibility determination shall be made using
the tool approved by the FIT program.
(7) The
families of children who are determined to be not eligible for the FIT program
shall be provided with prior written notice and informed
of their rights to dispute the eligibility determination and shall receive information on the ages and stages for kids
(ASK) developmental screening and tracking program and other appropriate
community resources. Families shall be
informed about how to request re-evaluation at a later time should they suspect
that their child’s delay or risk for delay increases.
H. Redetermination of eligibility.
(1) The child’s eligibility for
the FIT program shall be re-determined annually in accordance with the
eligibility determination requirements of this rule.
(2) The
child’s continued eligibility shall be documented on the IFSP.
(3) If the
child no longer meets the requirements under the original eligibility category,
the team will determine if the child meets the criteria for one of the other
eligibility categories before exiting the child.
(4) If the child is
determined to no longer be eligible for the FIT program the family shall be
provided with prior written notice and informed of their rights to dispute the
eligibility determination. The family
service coordinator will assist the family, with their consent, with referrals
to other agencies and shall inform them of the ages and stages for kids
developmental tracking program.
I. Ongoing assessment.
(1) Each
eligible child shall receive an initial and ongoing assessment to determine the
child’s unique strengths and needs and developmental functioning. The ongoing assessment will utilize multiple
procedures including the use of a tool that helps the team determine if the
child is making progress in their development, to determine developmental
levels for the IFSP and to modify outcomes and strategies, and to determine the
resources, priorities, and concerns of the family.
(2) Assessment information shall
be used by the team as part of the process of assisting to determine early
childhood outcome (ECO) scores at the time of the initial and annual IFSP and
prior to the child exiting the FIT program.
(3) An annual assessment of the
resources, priorities, and concerns of the family shall be voluntary on the
part of the family. The IFSP shall
reflect those resources, priorities and concerns the family has identified
related to supporting their child’s development.
[7.30.8.10 NMAC - Rp, 7.30.8.10 NMAC,
6/29/12]
7.30.8.11 INDIVIDUALIZED FAMILY SERVICE
PLAN (IFSP):
A. IFSP development.
(1) A written IFSP shall be
developed and implemented for each eligible child and family.
(2) The IFSP shall be developed
at a meeting. The IFSP meeting shall:
(a) take place in a setting and
at a time that is convenient to the family; and
(b) be
conducted in the native language of the family, or other mode of communication
used by the family, unless it is clearly not feasible to do so.
(3) Participants at the initial IFSP and
annual IFSP meeting shall include:
(a) the
parent(s);
(b) other
family members, as requested by the parent(s) (if feasible);
(c) an
advocate or person outside of the family, as requested by the parent(s);
(d) a
person or persons directly involved in conducting evaluations and assessments
of the child;
(e) a person or persons who are or will be providing early
intervention services to the child and family; and
(f) the
family service coordinator;
(g) other individual(s) as applicable, such as personnel from: child
care; early head start; home visiting; medically fragile; children’s medical
services; child protective services; physician and other medical staff, and
with permission of the parent(s).
(4) The
IFSP team must include the parent(s) and two or more individuals from separate
disciplines or professions, one of whom must be the family service coordinator.
(5) If
a person or persons directly involved in conducting evaluations and assessments
of the child is unable to attend a meeting, the family service coordinator
shall make arrangements for the person’s participation through other means,
including: participating by telephone; having a knowledgeable authorized
representative attend; or submitting a report.
(6) The initial IFSP shall be developed within 45
days of the referral.
(7) Families shall receive prior
written notice of the IFSP meeting.
(8) The
family service coordinator shall assist the parent(s) in preparing for the IFSP
meeting and shall ensure that the parent(s) have the information that they need
in order to fully participate in the meeting.
B. Contents of the IFSP: The IFSP shall include:
(1) the
child’s name, address, the name and address of the parent(s) or guardian, the
child’s birth date and, when applicable, the child’s chronological age and
adjusted age for prematurity (if applicable);
(2) the
date of the IFSP meeting, as well as the names of all participants in the IFSP
meeting;
(3) the
dates of periodic and annual reviews;
(4) a
summary of the child’s health (including vision and hearing) and the child’s present
levels of development in all domains (cognitive, communication, physical/motor,
social and emotional and adaptive);
(5) with
the approval of the parent(s), a statement of the family’s concerns, priorities
and resources that relate to enhancing the development of the infant or toddler
as identified through the family assessment;
(6) the
desired child and family outcomes developed with the family (including but not
limited to pre-literacy and numeracy, as developmentally appropriate to the
child), as well as strategies to achieve those outcomes and timelines, and
procedures and criteria to measure progress toward those outcomes;
(7) a
statement of specific early intervention services that are based on scientifically based research to the extent practicable to be provided and the duration, frequency, intensity,
location, and the method of delivering services in order to achieve the
expected outcomes;
(8) a
parental signature, which denotes prior consent to services identified
by the team as specific to the child and family’s need; if the parent(s) does
not provide consent for a particular early intervention service, then the
service(s) to which the parent(s) did consent shall be provided;
(9) specific
information concerning payment sources and arrangements;
(10) the
name of the ongoing family service coordinator;
(11) a statement
of all other services including, medical services, child care and
other early learning services being
provided to the child and family that are not funded
under this rule;
(12) an outcome,
including strategies the family service coordinator shall take to assist the
child and family to secure those other services;
(13) a
statement about the natural environments in which early intervention services
shall be provided; if the IFSP team determines that services cannot be
satisfactorily provided or IFSP outcomes cannot be achieved in natural
environments, then documentation for this determination and a statement of
where services will be provided and what steps will be taken to enable early
intervention services to be delivered in the natural environment must be
included;
(14) the
projected start dates for initiation of early intervention services and the
anticipated duration of those services; and
(15) at the
appropriate time, a plan including identified steps and services to be taken to
ensure a smooth and effective transition from early intervention services to
preschool services under IDEA Part B and other appropriate early learning
services.
C. Interim IFSP.
(1) With
parental consent an interim IFSP shall be developed and implemented, when an
eligible child or family have an immediate need for early intervention services
prior to the completion of the evaluation and assessment.
(2) The
interim IFSP shall include the name of the family service coordinator, the
needed early intervention services, the frequency, intensity, location and
methods of delivery, and parental signature indicating consent.
(3) The use
of an interim IFSP does not waive or constitute an extension of the evaluation
requirements and timelines.
D. Family service coordination.
(1) Family
service coordination shall be provided at no cost to the family.
(2) The
parent may choose the early intervention agency that will provide ongoing
family service coordination.
(3) The parent may request to
change the family service coordinator, at any time.
(4) The family service
coordinator shall be responsible for:
(a) informing
the family about early intervention and their rights and procedural safeguards;
(b) gathering
information from the family regarding their concerns, priorities and resources;
(c) coordinating
the evaluation and assessment activities;
(d) facilitating
the determination of the child’s eligibility;
(e) referring
the family to other resources and supports;
(f) helping
families plan and prepare for their IFSP meeting;
(g) organizing
and facilitating IFSP meetings;
(h) arranging
for and coordinating all services listed on the IFSP;
(i) coordinating
and monitoring the delivery of the services on the IFSP to ensure that they are
provided in a timely manner;
(j) conducting
follow-up activities to determine that appropriate services are being provided;
(k) assisting
the family in identifying funding sources for IFSP services, including medicaid
and private insurance;
(l) facilitating
periodic reviews of the IFSP; and
(m) facilitating the development
of the transition plan and coordinating the transition steps and activities.
(5) Family service coordination
shall be available to families upon their referral to the FIT program.
(6) Family service coordination
shall be listed on the IFSP for all families of eligible children.
(7) Families may direct the level
of support and assistance that they need from their family service coordinator
and may choose to perform some of the service coordination functions
themselves.
E. Periodic
review of the IFSP.
(1) A review of the IFSP shall
occur at a minimum every six months and shall include a determination of
progress towards outcomes and the need for modification of outcomes or
services.
(2) The
parent(s), the family service coordinator, and others as appropriate, shall
participate in these reviews.
(3) A
review can occur at any time at the request of the parent(s) or early intervention
provider agency.
(4) Participants
at a periodic review meeting shall include:
(a) the
parent(s);
(b) other
family members, as requested by the parent(s) (if feasible);
(c) an
advocate or person outside of the family, as requested by the parent(s);
(d) the
family service coordinator; and
(e) persons providing
early intervention services, as appropriate.
F. Annual IFSP.
(1) At least annually, the family service
coordinator shall convene the IFSP team, to review progress regarding outcomes on
the IFSP and revise outcomes, strategies or services, as appropriate.
(2) The team shall develop a new IFSP for the
coming year; however, information may be carried forward from the previous IFSP
if the information is current and accurate.
(3) Results of current evaluations and
assessments and other input from professionals and parents shall be used
in determining what outcomes will be addressed for the child and family and the
services to be provided to meet these outcomes.
(4) The annual IFSP review shall include a
determination of the child’s continuing eligibility utilizing the tool(s)
approved by the FIT program.
(5) At any time when monitoring of the IFSP by
the family service coordinator or any member of the IFSP team, including the
family, indicates that services are not leading to intended outcomes, the team
shall be reconvened to consider revision of the IFSP. The IFSP team can also be reconvened if there
are significant changes to the child’s or family’s situation, e.g., moving to a
new community, starting child care or early head start, health or medical
changes, etc.
(6) If there are significant changes to the
IFSP, the revised IFSP can be considered a new annual IFSP with a new start and
end date.
[7.30.8.11 NMAC - Rp, 7.30.8.11 NMAC,
6/29/12]
7.30.8.12 SERVICE DELIVERY:
A. Early intervention services.
(1) Early intervention services shall be:
(a) designed to address the outcomes
identified by the IFSP team (including the family) for the eligible child and
family;
(b) identified in collaboration with
the parents and other team members through the IFSP process;
(c) listed on the IFSP if recommended by the
team, including the family, even if a service provider is not available at that
time;
(d) delivered to the maximum extent
appropriate in the natural environment for the child and family in the context
of the family’s day to day life activities;
(e) designed to meet the developmental needs
of the eligible child and the family’s needs related to enhancing the child’s
development;
(f) delivered in accordance with the specific
location, duration and method in the IFSP; and
(g) provided at no
cost to the parent(s).
(2) Early intervention services (with the
exception of consultation and evaluation and assessments) must be provided
within 30 days of the start date for those services, as listed on the IFSP and
consented to by the parent(s).
(3) If an early intervention service cannot be
achieved satisfactorily for the eligible child in a natural environment, the
child’s record shall contain justification for services provided in another
setting or manner and a description of the process used to determine the most
appropriate service delivery setting, methodology for service delivery, and
steps to be taken to enable early intervention services to be delivered in the
natural environment.
(4) Early intervention services shall be
provided, by qualified personnel, in accordance with an IFSP, and meet the
standards of the state. Early
intervention services include:
(a) Assistive technology services: services which directly assist in the
selection, acquisition, or use of assistive technology devices for eligible
children. This includes the evaluation
of the child’s needs, including a functional evaluation in the child’s natural
environment; purchasing, leasing, or otherwise providing for the acquisition of
assistive technology devices for eligible children; selecting, designing,
fitting, customizing, adapting, applying, maintaining, repairing, or replacing
assistive technology devices; coordinating and using other therapies,
interventions, or services with assistive technology devices, such as those
associated with existing developmental therapy, education and rehabilitation
plans and programs; training or technical assistance for an eligible child and
the child's family; and training or technical assistance for professionals that
provide early intervention or other individuals who provide other services or
who are substantially involved in the child's major life functions. Assistive technology devices are pieces of
equipment, or product systems, that are used to increase, maintain, or improve
the functional capabilities of eligible children. Assistive technology devices and services do
not include medical devices that are implanted, including a cochlear implant, or
the optimization, maintenance, or replacement of such a device.
(b) Audiological services: services that address the following:
identification of auditory impairment in a child using at risk criteria and
appropriate audiology screening techniques; determination of the range, nature,
and degree of hearing loss and communication functions, by use of audiological
evaluation procedures; referral for medical and other services necessary for
the habilitation or rehabilitation of children with auditory impairment;
provision of auditory training, aural rehabilitation, speech reading and
listening device orientation and training;
provision of services for the prevention of hearing loss; and
determination of the child’s need for individual amplification, including
selecting, fitting, and dispensing appropriate listening and vibrotactile
devices, and evaluating the effectiveness of those devices.
(c) Developmental instruction:
services that include working in a coaching role with the family or
other caregiver, the design of learning environments and implementation of
planned activities that promote the child’s healthy development and acquisition
of skills that lead to achieving outcomes in the child’s IFSP. Developmental instruction provides families
and/or other caregivers with the information, skills, and support to enhance
the child’s development. Developmental
instruction addresses all developmental areas: cognitive, communication,
physical/motor, vision, hearing), social or emotional and adaptive
development. Developmental instruction
services are provided in collaboration with the family and other personnel
providing early intervention services in accordance with the IFSP.
(d) Family therapy, counseling and training: services provided, as appropriate, by
licensed social workers, family therapists, counselors, psychologists, and
other qualified personnel to assist the parent(s) in understanding the special
needs of their child, supporting the parent-child relationship, and to assist
with emotional, mental health and relationship issues of the parent(s) related
to parenting and supporting their child’s healthy development.
(e) Family service coordination: services and activities as designated in the
IFSP and performed by a designated individual to assist and enable the families
of children from birth through age three years of age to access and receive
early intervention services. The
responsibilities of the family service coordinator include acting as the single
point of contact for: coordinating, facilitating and monitoring the delivery of
services to ensure that services are provided in a timely manner; coordinating
services across agency lines; assisting parents in gaining access to, and
coordinating the provision of, early intervention services and other services
as identified on the IFSP; explaining to families about the early intervention
and their procedural safeguards; gathering information from the family
regarding their concerns, priorities and resources; coordinating the evaluation
and assessment activities; facilitating the determination of the child’s
eligibility; referring the family to providers for needed services and
supports; scheduling appointments for IFSP services for the child and their
family; helping families plan and prepare for their IFSP meeting; organizing,
facilitating and participating in IFSP meetings; arranging for and coordinating
all services listed on the IFSP; conducting follow-up activities to determine
that appropriate services are being provided; coordinating funding sources for
services provided under the IFSP; monitoring
the delivery of the services listed on the IFSP; facilitating periodic
reviews of the IFSP; and ensuring that a transition plan is developed at the
appropriate time.
(f) Health services: those health related services that enable an
eligible child to benefit from the provision of other early intervention
service during the time that the child is receiving the other early
intervention services. These services
include, but are not limited to, clean intermittent catheterization,
tracheostomy care, tube feeding, the changing of dressings or colostomy
collection bags, and other health services; and consultation by physicians with
other service providers concerning the special health care needs of eligible
children that will need to be addressed in the course of providing other early
intervention services. Health services
do not include surgery or purely medical services; devices necessary to control
or treat a medical condition; medical-health services (such as immunizations
and regular “well-baby” care) that are routinely recommended for all children;
or services related to implementation, optimization, maintenance or replacement
of a medical device that is surgically implanted.
(g) Medical services: those
services provided for diagnostic or evaluation purposes by a licensed physician
to determine a child’s developmental status and other information related to
the need for early intervention services.
(h) Nursing services: those services that enable an eligible child
to benefit from early intervention services during the time that the child is
receiving other early intervention services and include the assessment of
health status for the purpose of providing nursing care; the identification of
patterns of human response to actual or potential health problems; provision of
nursing care to prevent health problems, restore or improve functioning, and
promote optimal health and development; and administration of medication,
treatments, and regimens prescribed by a licensed physician.
(i) Nutrition services: include conducting individual assessments in
nutritional history and dietary intake; anthropometric biochemical and clinical
variables; feeding skills and feeding problems; and food habits and food preferences. Nutrition services also include developing
and monitoring appropriate plans to address the nutritional needs of eligible
children; and making referrals to appropriate community resources to carry out
nutrition goals.
(j) Occupational therapy services: those services that address the functional
needs of a child related to adaptive development, adaptive behavior and play,
and sensory, motor, and postural development.
These services are designed to improve the child’s functional ability to
perform tasks in a home, school, and community setting. Occupational therapy includes identification,
assessment, and intervention; adaptation of the environment and selection,
design and fabrication of assistive and orthotic devices to facilitate the
development and promote the acquisition of functional skills, and prevention or
minimization of the impact of initial or future impairment, delay in
development, or loss of functional ability.
(k) Physical
therapy services: those services
that promote sensorimotor function through
enhancement of musculoskeletal status,
neurobehavioral organization, perceptual and motor development, cardiopulmonary
status, and effective environmental adaptation. Included are screening, evaluation, and
assessment of infants and toddlers to identify movement dysfunction; obtaining
interpreting, and integrating information appropriate to program planning to
prevent or alleviate movement dysfunction and related functional problems; and
providing individual and group services to prevent or alleviate movement
dysfunction and related functional problems.
(l) Psychological services: those services delivered as specified in the
IFSP which include administering psychological and developmental tests and
other assessment procedures; interpreting assessment results; obtaining,
integrating, and interpreting information about child behavior, and child and
family conditions related to learning, mental health, and development; and
planning and management of a program of psychological services, including
psychological counseling for children and parents, family counseling,
consultation on child development, parent training, and education programs.
(m) Sign language and cued language
services: services that include teaching sign language,
cued language, and auditory/oral language, providing oral transliteration
services (such as amplification), and providing sign and cued language
interpretation.
(n) Social work services: those
activities as designated in the IFSP that include identifying, mobilizing, and coordinating
community resources and services to enable the child and family to receive
maximum benefit from early intervention services; preparing a social or
emotional developmental assessment of the child within the family context;
making home visits to evaluate patterns of parent-child interaction and the
child’s living conditions, providing individual and family-group counseling
with parents and other family members, and appropriate social skill-building
activities with the child and parents; and working with those problems in a
child’s and family’s living situation that affect the child’s maximum
utilization of early intervention services.
(o) Speech and language pathology services: those services as designated in the IFSP
which include identification of children with communicative or oral-motor
disorders and delays in development of communication skills, including the
diagnosis and appraisal of specific disorders and delays in those skills;
provision of services for the habilitation or rehabilitation of children with
communicative or oral-motor disorder and delays in development of communication
skills; and provision of services for the habilitation, rehabilitation, or
prevention of communicative or oral-motor disorders and delays in development
of communication skills.
(p) Transportation services: supports that assist the family with the cost
of travel and other related costs as designated in the IFSP that are necessary
to enable an eligible child and family to receive early intervention services
or providing other means of transporting the child and family.
(q) Vision services: services delineated in the IFSP that address
visual functioning and ability of the child to most fully participate in family
and community activities. These include
evaluation and assessment of visual functioning including the diagnosis and
appraisal of specific visual disorders, delays and abilities; referral for
medical or other professional services necessary for the habilitation or
rehabilitation of visual functioning disorder; and communication skills
training. Vision services also include orientation and mobility training
addressing concurrent motor skills, sensation, environmental concepts,
body image, space/time relationships, and gross motor skills. Orientation and
mobility instruction is focused on travel and movement in current environments
and next environments and the interweaving of skills into the overall latticework
of development. Services include evaluation and assessment of infants and
toddlers identified as blind/visually impaired to determine necessary
interventions, vision equipment, and strategies to promote movement and
independence.
B. All services delivered to an
eligible child shall be documented in the child’s record and reported to the
FIT program in accordance with policy and procedure established by the FIT
program.
C. The family service coordinator shall
review and monitor delivery of services to ensure delivery in accordance with
the IFSP.
[7.30.8.12 NMAC - Rp, 7.30.8.12 NMAC,
6/29/12]
7.30.8.13 TRANSITION:
A. Transition
planning shall occur with the parent(s) of all children to ensure a smooth
transition from the FIT program to preschool or other setting.
B. Notifications to the public
education department and local education agency (LEA):
(1) The FIT program shall provide
notification to the public education department, special education bureau, of
all potentially eligible children statewide who will be turning three years old
in the following twelve month period.
(2) The early intervention provider
agency shall notify the LEA of all potentially eligible children residing in
their district who will turn three years old in the following twelve month
period. This will allow the LEA to conduct effective program planning.
(3) The notification from the early
intervention provider agency to the LEA shall:
(a) include children who are
potentially eligible for preschool special education services under the
Individuals with Disabilities Education Act (IDEA) Part B; potentially eligible
children are those children who are eligible under the developmental delay or
established condition categories;
(b) include the child’s name, date of birth, and contact
information for the parent(s);
(c) be provided at least quarterly in
accordance with the process determined in the local transition agreement; and
(d) be provided not fewer than 90 days before the third birthday of each child who
is potentially eligible for IDEA Part B.
C. Transition plan:
(1) A transition plan shall be
developed with the parent(s) for each eligible child and family that addresses
supports and services after the child leaves the FIT program.
(2) The transition plan shall be included
as part of the child’s IFSP and shall be updated, revised and added as needed.
(3) The following is the timeline for developing the transition plan:
(a) at the child’s initial IFSP meeting the
transition plan shall be initiated and shall include documentation that the
family service coordinator has informed the parent(s) regarding the timelines
for their child’s transition;
(b) by the time child is 24 months
old, the transition plan will be updated to
include documentation that the family service coordinator has informed the
parent(s) of the early childhood transition options for their child and any
plans to visit those settings; and
(c) at least 90 days and not more than nine
months before the child’s third birthday, the transition plan shall be
finalized at an annual IFSP or transition conference meeting that meets the
attendance requirements of this rule.
(4)
The transition plan shall include:
(a) steps, activities and services
to promote a smooth and effective transition for the child and family;
(b) a review of program and service options,
including Part B preschool special education, head start, New Mexico school for
the deaf, New Mexico school for the blind and visually impaired, private
preschool, child care settings and available options for Native American tribal
communities; or home if no other options are available;
(c) documentation of when the child will
transition;
(d) the parent(s) needs for childcare if they
are working or in school, in an effort to avoid the child having to move
between preschool settings;
(e) how the child will participate in
inclusive settings with typically developing peers;
(f) evidence that the parent(s) have been informed
of the requirement to send notification to the LEA;
(g) discussions with
and training of the parent(s) regarding future placements and other matters
related the child’s transition;
(h) procedures to prepare the child for changes in service delivery,
including steps to help the child adjust to, and function in a new setting; and
(i) a confirmation that
referral information has been transmitted, including the assessment summary
form and most recent IFSP.
D. Referral to the LEA and other
preschool programs:
(1) A transition referral shall be submitted
by the family service coordinator, with parental consent, to the LEA at least
60 days prior to the transition conference.
The transition referral shall include at a minimum the child’s name, the
child’s date of birth, the child’s address of residence, and the contact
information for the parent(s), including name(s), address(es), and phone
number(s).
(2) For children who enter the FIT program
less than 90 days before their third birthday, the family service coordinator
shall submit a referral, with parental consent, as soon as possible to the LEA. This referral shall
serve as the notification for the child.
No further notification to the LEA shall be required for the child.
(3) For children referred to the FIT program
less than 45 days before the child’s third birthday, the family service
coordinator shall submit a referral to the LEA, with parent consent, but the
early intervention provider agency will not conduct an evaluation to determine
eligibility in accordance with the referral and intake provisions of this rule.
E. Invitation to the transition
conference: The family
service coordinator shall submit an invitation to the transition conference to
the LEA and other preschool programs at least 30 days prior to the transition
conference.
F. Transition
assessment summary:
(1) The family service coordinator shall
submit a completed transition assessment summary form to the LEA at least 30
days prior to the transition conference.
(2) Assessment results, including present
levels of development, must be current within six months of the transition
conference.
G. Transition conference: The
transition conference shall:
(1) be held with the
approval of the parent(s);
(2) be held at least 90
days and no more than nine months prior to the child’s third birthday;
(3) meet the IFSP meeting attendance
requirements of this rule;
(4) take place in a setting and at a time that
is convenient to the family;
(5) be conducted in the native language of
the family, or other mode of communication used by the family, unless it is
clearly not feasible to do so;
(6) with permission of the parent(s), include
other early childhood providers (early head start/head start, child care,
private preschools, New Mexico school for the deaf, New Mexico school for the
blind and visually impaired, etc.);
(7) be facilitated by the family service
coordinator to include:
(a) a review of the parent(s)’s preschool and
other service options for their child;
(b) a review of, and if needed, a finalization
of the transition plan;
(c)
a review of the current IFSP, the assessment summary; and any other
relevant information;
(d) the
transmittal of the IFSP, evaluation and assessments and other pertinent
information with parent consent;
(e) an explanation by an LEA representative of
the IDEA Part B procedural safeguards and the eligibility determination
process, including consent for the evaluation;
(f) as appropriate, discussion of
communication considerations (if the child is deaf or hard of hearing) and
Braille determination (if the child has a diagnosis of a visual impairment),
autism considerations, and considerations for children for whom English is not
their primary language.
(g) discussion of issues including enrollment
of the child, transportation, dietary needs, medication needs, etc.
(h) documentation of the decisions made on the
transition page and signatures on the transition conference signature page,
which shall be included as part of the IFSP.
Copies of the transition conference page and signature page shall be
sent to all participants.
H. Transition date:
(1) The child shall transition from the FIT
program when he or she turns three years old.
(2) For a child determined to be eligible by
the LEA for preschool special education (IDEA Part B):
(a) if the child’s third birthday occurs
during the school year, transition shall occur by the first school day after
the child turns three; or
(b) if the child’s third birthday occurs
during the summer, the child’s IEP team shall determine the date when services
under the IEP (or IFSP-IEP) will begin.
I. The individualized education
program (IEP):
(1) The family service coordinator and other
early intervention personnel shall participate in a meeting to develop the IEP
(or IFSP-IEP) with parent approval.
(2) The family service coordinator, with
parent consent, shall provide any new or updated documents to the LEA in order
to develop the IEP.
J. Follow-up family service
coordination: At the request of the parents, and in accordance
with New Mexico department of health policy, family service coordination shall
be provided after the child exits from early intervention services for the
purpose of facilitating a smooth and effective transition.
[7.30.8.13 NMAC - Rp, 7.30.8.13 NMAC,
6/29/12]
7.30.8.14 PROCEDURAL SAFEGUARDS:
A. Procedural safeguards are the
requirements set forth by IDEA, as amended, and established and implemented by
the New Mexico department of health that specify family’s rights and
protections relating to the provision of early intervention services and the
process for resolving individual complaints related to services for a child and
family. The family service coordinator at
the first visit with the family shall provide the family with a written
overview of these rights and shall also explain all the procedural safeguards.
B. The family service coordinator shall provide ongoing
information and assistance to families regarding their rights throughout the
period of the child’s eligibility for services.
The family service coordinator shall explain dispute resolution options
available to families and early intervention provider agencies. A family service coordinator shall not
otherwise assist the parent(s) with the dispute resolution process.
C. Surrogate parent(s).
(1) A surrogate parent shall be assigned when:
(a) no parent can be
identified;
(b) after reasonable
efforts a parent cannot be located; and
(c) a child is a ward
of the state or tribe and the foster parent
is unable or unwilling to act as the parent in the IFSP process.
(2) The family service coordinator shall be
responsible for determining the need for the assignment of a surrogate
parent(s) and shall contact the FIT program if the need for a surrogate is
determined.
(3) The continued need for a surrogate
parent(s) shall be reviewed regularly throughout the IFSP process.
(4) The FIT program shall assign a surrogate
parent within 30 days after it is determined that the child needs a surrogate
parent. A surrogate may also be appointed by a judge in case of a child who is
a ward of the court, as long as the surrogate meets the requirements of this
rule.
(5) The person selected as a surrogate:
(a) must not be an
employee of the lead agency, other public agency or early intervention provider
agency or provider of other services to the child or family; the person is not
considered an employee if they solely are employed to serve as a surrogate;
(b) must have no
personal or professional interest that conflicts with the interests of the
child; and
(c) must have knowledge
and skills that ensure adequate representation of the child.
(6) A surrogate parent has all of the same rights
as a parent for all purposes of this rule.
D. Consent.
(1) The family service coordinator shall
obtain parental consent before:
(a) administering
screening procedures under this rule that are used to determine whether a child
is suspected of having a disability;
(b) an evaluation
conducted to determine the child’s eligibility for the FIT program;
(c) early intervention services
are provided;
(d) public or private
insurance is used, in accordance with this rule; and
(e) personally
identifiable information is disclosed, unless the disclosure is made to a participating
agency.
(2) The family service coordinator shall
ensure that the parent is fully aware of the nature of the evaluation and
assessment or early intervention service that would be available and informed
that without consent the child cannot receive an evaluation or early
intervention services.
(3) The parent(s):
(a) may accept or
decline any early intervention service at any time; and
(b) may decline a
service after first accepting it, without jeopardizing other early intervention
services.
(4) The FIT program may not use due process
procedures of this rule to challenge a parent’s refusal to provide any consent
that is required by this rule.
E. Prior written notice and
procedural safeguards notice.
(1) Prior written notice shall be provided at
least five days before the early intervention provider agency proposes, or
refuses, to initiate or change the identification, evaluation or placement of a
child, including any changes to length, duration, frequency and method of
delivering a service. Parent(s) may
waive the five-day period in order for the change to be implemented sooner, if
needed.
(2) The prior written notice must include
sufficient detail to inform the parent(s) about:
(a) the action being
proposed or refused;
(b) the reasons for
taking the action; and
(c) all procedural
safeguards available, including mediation, how to file a complaint and a
request for a due process hearing, and any timelines for each.
(3) The procedural safeguards notice must be
provided in the native language of the parent(s) or other mode of communication
used by the parent, unless clearly not feasible to do so.
(4) If the native language of the parent(s) is
not a written language, the early intervention provider agency shall translate
the notice orally in their native language or other means of communication so
that the parent understands the notice. The family service coordinator shall
document that this requirement has been met.
F. No child or family shall be denied
access to early intervention services on the basis of race, creed, color,
sexual orientation, religion, gender, ancestry, or national origin.
G. Confidentiality and opportunity
to examine records.
(1) Notice:
Notice to the parent(s) shall be provided when a child is referred to the
FIT program, and shall include:
(a) a description of the types of children
that information is maintained on, the types of information sought, and method
used in gathering the information, and the uses of the information;
(b) a summary of the policies and procedures
regarding storage, disclosure to third parties, retention and destruction of
personally identifiable information;
(c) a list of the types and locations of early
intervention records collected, maintained or used by the agency;
(d) a description of the rights of the
parent(s) and children regarding this information, including their rights under
IDEA, Part C (“Confidentiality”); and
(e) a description of the extent to which the
notice is provided in the native languages of the various population groups in
the state.
(2) Confidentiality.
(a) All personally identifiable data,
information, and records shall be protected and confidentiality maintained in
accordance with the Family Educational Rights and Privacy Act (FERPA).
(b) Personally identifiable data, information,
and records shall be maintained as confidential from the time the child is
referred to the FIT program until the point at which records are no longer
required to be maintained in accordance with federal or state law.
(c) Prior consent from the parent(s) must be
obtained before personally identifiable information is disclosed to anyone
other than a participating agency or used for any purpose other than meeting a
requirement of these regulations.
(d) The early
intervention provider agency must protect the confidentiality of personally
identifiable information at the collection, maintenance, use, storage,
disclosure, and destruction stages.
(e) One official at
each early intervention provider agency must assume responsibility for ensuring
the confidentiality of all personally identifiable information.
(f) The early intervention provider agency
must maintain for public inspection a current listing of names and positions of
personnel who may have access to personally identifiable information.
(g) All personnel
collecting or using personally identifiable information must receive
training or instructions on the confidentiality requirements of this rule.
(3) Access to records.
(a) The early
intervention provider agency must permit the parent(s) to inspect and review
any early intervention records related to their child without unnecessary delay
and before any IFSP meeting or due process hearing, and in no cases more than
10 days after the request has been made.
(b) The early intervention provider agency
must respond to reasonable requests for explanations and interpretations of the
early intervention records.
(c) The parent has the right to have a
representative inspect and review the early intervention records.
(d) The early
intervention provider agency must assume that the parent has the right to
review the early intervention records unless they have been provided
documentation that the parent does not have authority under state law governing
such matters as custody, foster care, guardianship, separation and divorce.
(e) The early intervention provider agency
must provide copies of evaluations and assessments, the IFSP as soon as
possible after each meeting at no cost.
(f) The early
intervention provider agency must provide one complete copy of the child’s
early intervention records at the request of the parent(s) at no cost.
(g) The early
intervention provider agency may otherwise charge a fee for copies of records
that are made for parents under this rule if the fee does not effectively
prevent the parent(s) from exercising their right to inspect and review those
records.
(h) The early intervention provider agency may
not charge a fee to search for or to retrieve records to be copied.
(4) Record of access.
(a) The early intervention provider agency
must keep a record of parties obtaining access to early intervention records
(except access by the parent(s), authorized representatives of the lead agency
and personnel of the FIT provider agency).
(b) The record must include the name of the
party, the date access was given, and the purpose for which the party was
authorized to access the record.
(c) If any early intervention record includes
information on more than one child, the parents of those children have the
right to inspect and review only the information relating to their child or to
be informed of that specific information.
(5) Amendment of records at parent request.
(a) If the parent(s) believes that information
in the child’s records is inaccurate, misleading, or violates the privacy or
other rights of the child or parent(s), they may request that the early
intervention provider agency amend the information.
(b) The early intervention provider agency
must decide whether to amend the information in accordance with the request
within 14 days of receipt of the request.
(c) If the early intervention provider agency
refuses to amend the information in accordance with the request, it must in
inform the parent(s) of the refusal and advise the parent(s) of their right to
a hearing.
(6) Records hearing.
(a) The early intervention provider agency
must, on request, provide parents with the opportunity for a hearing to
challenge information in their child’s record to ensure that it is not
inaccurate, misleading, or violates the privacy or other rights of the child or
parent(s).
(b) A parent may request a due process hearing
under this rule to address amendment of records.
(c) If as a result of a hearing it is
determined that information in the records is inaccurate, misleading, or
violates the privacy or other rights of the child or parent(s), the early
intervention provider agency must amend the information accordingly and inform
the parents in writing.
(d) If as a result of a hearing it is
determined that information in the records is not inaccurate, misleading, or
violates the privacy or other rights of the child or parent(s), the early
intervention provider agency must inform the parents of the right to place in
the child’s records a statement commenting on the information or setting forth
any reasons for disagreeing with the decision of the agency.
(e) Any explanation placed in the child’s
records must be maintained by the early intervention provider agency as long as
the record is contested or as long as the contested portion is maintained and
if the contested portion is released to any party, the explanation must also be
disclosed to the party.
(7) Destruction of records.
(a) Records shall be maintained for a minimum of
six years following the child’s exit from the early intervention services
system before being destroyed. At the
conclusion of the six year period, records shall be destroyed upon the request
of the parent(s), or may be destroyed at the discretion of the early
intervention provider agency.
(b) The early intervention provider agency
must attempt to inform the parent(s) when personally identifiable
information collected, maintained or used is no longer needed to provide services
under state and federal regulations.
(c) Notwithstanding the foregoing, a permanent
record of a child’s name, date of birth, parent contact information, name of the
family service coordinator, names of early intervention personnel, and exit
data (year and age upon exit, and any programs entered into upon exit) may be
maintained without time limitation.
H. Dispute resolution options.
(1) Parents and providers shall have access to
an array of options for resolving disputes, as described herein.
(2) The family service coordinator shall
inform the family about all options for resolving disputes. The family shall also be informed of the
policies and procedures of the early intervention provider agency for resolving
disputes at the local level.
I. Mediation.
(1) The mediation process shall be made
available to parties to disputes, including matters arising prior to filing a
complaint or request for due process hearing.
The mediation:
(a) shall be voluntary on the part of the
parties;
(b) shall not be used to deny or delay the
parent(s)’s right to a due process hearing or to deny any other rights of the
parent(s);
(c) shall be conducted by a qualified and
impartial mediator who is trained in mediation techniques and who is
knowledgeable in the laws and regulations related to the provision of early
intervention services;
(d) shall be selected by the FIT program from
a list of qualified, impartial mediators who are selected based on a random,
rotational or other impartial basis; the selected mediator may not be an
employee of the lead agency or the early intervention provider agency and they
must not have a personal or professional interest that conflicts with the
person’s objectivity; and
(e) shall be funded by the FIT program.
(2) Sessions in the mediation process must be
scheduled in a timely manner and must be held in a location that is convenient
to the parties.
(3) If the parties resolve the dispute, they
must execute a legally binding agreement that:
(a) states that all discussions that occurred
during the mediation process will remain confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding; and
(b) is signed by both parties.
(4) The mediation agreement shall be
enforceable in a state or federal district court of competent jurisdiction.
J. Complaints.
(1) An individual or organization may file a
complaint with the state director of the FIT program regarding a proposal, or
refusal, to initiate or change the identification, evaluation, or placement of
a child; or regarding the provision of early intervention services to a child
and the child’s family. The party
submitting the complaint shall also forward a copy of the complaint to the FIT
provider agency(ies) serving the child.
(2) The written complaint shall be signed by
the complaining party and shall include:
(a) a statement that the FIT program or
FIT provider agency(ies) serving the child have violated a requirement of this
rule or Part C of the IDEA, and a statement of the facts on which that
allegation is based;
(b) the signature and contact information of
the complainant;
(c) if the complaint concerns a specific child:
(i) the name and address of the residence of the child, or if the child is
homeless, the contact information for the child;
(ii) the name of the FIT provider agency(ies)
serving the child;
(iii) a description of the nature of the dispute
related to the proposed or refused initiation or change, including facts
related to the dispute; and
(d) a proposed resolution of the dispute to
the extent known and available to the party at the time.
(3) The complaint must allege a violation that
occurred not more than one year prior to the date that the complaint is
received by the FIT program.
(4)
Upon receipt of a complaint, the department of health shall determine if
an investigation is necessary, and if an investigation is deemed necessary,
within 60 calendar days after the complaint is received it shall:
(a) carry out an independent on-site
investigation;
(b) give the complainant the opportunity to
submit additional information, either orally or in writing, about the
allegations in the complaint;
(c) provide an opportunity for the lead
agency, public agency or early intervention provider agency to respond to the
complaint, including at a minimum:
(i) at the discretion of the FIT program, a
proposal to resolve the complaint; and
(ii) an opportunity for a parent who has filed
a complaint and the FIT program or the FIT provider agency(ies) serving the
child to voluntarily engage in mediation, consistent with this rule;
(d) give the parties the opportunity to
voluntarily engage in mediation;
(e) review all relevant information and make
an independent determination as to whether any law or regulation has been
violated; and
(f) issue a written decision to the
complainant and involved parties that addresses each allegation and details the
findings of fact and conclusions and the reason for the complaint investigator’s
final decision. The written decision may
include recommendations that include technical assistance activities,
negotiations and corrective actions to be achieved.
(5) An extension of the 60 day investigation
timeline will only be granted if exceptional circumstances exist with respect
to a particular complaint or if the parties agree to extend the timeline to
engage in mediation.
(6) If the complaint received is also the
subject of a due process hearing or contains multiple issues, of which one or
more are part of that hearing, the complaint investigator shall set aside any
part of the complaint that is being addressed in a due process hearing until
the conclusion of that hearing. Any
issue in the complaint that is not part of the due process hearing must be
resolved within the sixty calendar day timeline.
(7) If an issue raised in a complaint is or
was previously decided in a due process hearing involving the same parties, the
decision from that hearing is binding on that issue, and the FIT program shall
inform the complainant to that effect.
(8) A complaint alleging a failure to
implement a due process hearing decision shall be resolved by the department.
(9) Except as otherwise provided by law, there
shall be no right to judicial review of a decision on a complaint.
K Request for a due process hearing.
(1) In addition to the complaint procedure
described above, a parent, a participating FIT provider, or the FIT program may
file a request for a hearing regarding a proposal, or refusal, to initiate or
change the identification, evaluation, or placement of a child; or regarding
the provision of early intervention services to a child and the child’s family.
(2) A parent or participating FIT provider may
request a hearing to contest a decision made by the FIT program pursuant to the
complaints provisions above.
(3) A
request for a hearing shall contain the same minimum information required for a
complaint under this rule.
L. Appointment of hearing officer.
(1) When a request for a hearing is received,
the FIT program shall assign an impartial hearing officer from a list of
hearing officers maintained by the FIT program who:
(a) has knowledge about IDEA Part C and early
intervention;
(b) is not an employee of any agency or entity
involved in the provision of early intervention; and
(c) does not have a personal or professional
interest that would conflict with their objectivity in implementing the
process.
(2) The hearing officer shall:
(a) listen to the presentation of relevant
viewpoints about the due process issue;
(b) examine all information relevant to the
issues;
(c) seek to reach timely resolution of the
issues; and
(d) provide a record of the proceedings,
including a written decision.
M. Due process hearings.
(1) When a request for a hearing is received,
a due process hearing shall be conducted.
(2) The due process hearing shall be carried
out at a time and place that is reasonably convenient to the parents and child
involved.
(3) The due process hearing shall be conducted
and completed and a written decision shall be mailed to each party no later
than 30 days after receipt of a parent’s complaint. However, the hearing officer may grant specific
extensions of this time limit at the request of either party.
(4) A parent shall have the right in the due
process hearing proceedings:
(a) to be accompanied and advised by counsel
and by individuals with special knowledge or training with respect to early
intervention services for children and others, at the party’s discretion;
(b) to present evidence and confront, cross
examine, and compel the attendance of witnesses;
(c) to prohibit the introduction of any
evidence at the hearing that has not been disclosed to the party at least five
days before the hearing;
(d) to obtain a written or electronic verbatim
record of the hearing, at no cost to the parent; and
(e) to obtain a written copy of the findings
of fact and decisions, at no cost to the parent.
(5) Any
party aggrieved by the findings and decision of the hearing officer after a
hearing has the right to bring a civil action in a state or federal court of
competent jurisdiction, within 30 days of the date of the decision.
N. Abuse, neglect, and exploitation.
(1) All instances of suspected abuse, neglect,
and exploitation shall be reported in accordance with law and policies
established through the New Mexico department of health and the children, youth
and families department.
(2) A parent’s decision to decline early
intervention services does not constitute abuse, neglect or exploitation.
[7.30.8.14 NMAC - Rp, 7.30.8.14 NMAC
& 7.30.8.15 NMAC, 6/29/12]
HISTORY of 7.30.8 NMAC
Pre-NMAC
History:
None
History of the Repealed
Material:
7 NMAC 30.8 Requirements For Family Infant Toddler
Early Intervention Services, filed 09-16-97 - Repealed, effective 10/01/2001.
7.30.8 NMAC, Requirements For Family Infant
Toddler Early Intervention Services, filed 09-14-01 - Repealed, effective
6-29-12.